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THE  PERMANENT  COURT 


AN  ADDRESS 


BY 


Honorable  Charles  E.  Hughes 


SECRETARY  OF  STATE  OF  THE  UNITED  STATES 


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THE  PERMANENT  COURT 
OF  INTERNATIONAL  JUSTICE 


AN  ADDRESS 

BY 

Honorable  Charles  E.  Hughes 

SECRETARY  OF  STATE  OF  THE  UNITED  STATES 


delivered  before  the 

AMERICAN  SOCIETY  OF  INTERNATIONAL  LAW 


■  \  .  ^ 

WASHINGTON,  D.  C,  APRIL  27,  1923 


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THE  PERMANENT  COURT  OF  INTERNATIONAL 

JUSTICE. 


It  is  my  purpose  to  discuss  in  the  simplest  manner  the  proposal 
made  by  the  President  that  the  United  States  should  participate, 
upon  stated  conditions,  in  the  support  of  the  Permanent  Court  of  In¬ 
ternational  Justice.  In  making  this  proposal,  the  President  has 
been  animated  by  the  desire  to  promote  world  peace  and  stabiliza¬ 
tion;  he  has  sought  to  give  effect  to  a  long  cherished  American  as¬ 
piration  and  to  pursue  in  the  projected  course  the  clear  line  of  our 
traditional  policy.  With  full  appreciation  of  the  intensity  of  feel¬ 
ing  aroused  by  the  controversy  of  recent  years  we  can  not  fail  to 
realize  the  importance  of  having  the  subject  considered  upon  its 
merits  and  the  supreme  need  is  an  understanding  of  the  facts  which 
should  remove  uncertainty  and  quiet  apprehension. 

Let  it  first  be  noted  exactly  what  the  proposal  is  and  what  it  is 
not.  As  the  President  has  explicitly  stated,  it  is  proposed  to  sup¬ 
port  the  Permanent  Court  of  International  Justice;  it  is  not  pro¬ 
posed  to  enter  the  League  of  Nations.  Those  who  desire  that  by  this 
method  the  United  States  shall  become  a  member  of  the  league  are 
indulging  vain  hopes,  and  those  who  are  alarmed  at  such  a  possibility 
are  entertaining  vain  fears.  The  test  is  a  clear  one.  If  the  Senate 
should  approve  the  President’s  recommendation,  the  United  States 
would  still  be  outside  the  league.  Acceptance  of  the  President’s 
proposal  as  to  the  International  Court  will  not  obtain  for  the  United 
States  a  single  right  or  subject  it  to  a  single  obligation  under  the 
covenant  of  the  league. 

These  are  the  questions  in  which  I  assume  the  citizens  of  the 
United  States  are  interested : 

Is  it  a  good  thing  to  have  an  international  court? 

Why  should  we  have  a  permanent  court  instead  of  temporary 
arbitral  tribunals? 

Is  the  Permanent  Court  of  International  Justice  established  on  a 
sound  basis? 

Is  there  any  good  reason  why  the  United  States  should  not  sup¬ 
port  it? 

First.  Why  should  there  be  an  international  court?  The  mani¬ 
fest  answer  is  that  there  are  controversies  between  nations  which 
should  be  decided  by  a  court.  There  are  controversies  calling  for 
the  examination  of  facts  and  the  application  of  principles  of  law. 

44777—23  1 


2 


There  are  international  contracts  or  treaties,  now  more  numerous 
than  ever,  to  be  interpreted.  Recognizing  the  distinction  between 
questions  of  a  legal  nature  and  questions  of  policy,  there  has  emerged 
from  the  discussions  of  jurists  an  agreement  defining  justiciable  dis¬ 
putes  as  those  which  relate  to  the  interpretation  of  a  treaty,  to  any 
question  of  international  law,  to  the  existence  of  facts  which  would 
constitute  a  breach  of  an  international  obligation  or  to  the  repara¬ 
tion  to  be  made  for  such  breaches.  Other  questions  may  be  submitted 
for  decision,  but  questions  of  the  sort  above  described  are  manifestly 
of  the  same  character  as  those  which  in  all  civilized  countries  are 
recognized  as  matters  for  determination  by  judicial  tribunals  whose 
impartial  judgment  affords  the  nearest  human  approach  to  absolute 
justice. 

It  is  to  the  direct  interest  of  the  United  States,  with  respect  to  the 
disposition  of  its  own  controversies,  that  the  best  practicable  method 
of  judicial  settlement  should  be  provided.  We  have  rights  and  duties 
under  international  law.  We  are  parties  to  treaties  under  which  we 
have  rights  and  obligations.  As  we  can  not  be  the  final  judge  in  our 
own  cases,  we  need  the  best  possible  international  tribunal  to  decide 
them.  This  is  to  the  interest  of  every  American  citizen.  It  is  also  to  the 
interest  of  the  United  States  that  controversies  between  other  nations 
to  which  the  United  States  is  not  a  party  should  be  appropriately 
determined.  Suppose  a  citizen  of  New  York  should  say  that  he  was 
interested  only  in  haVing  a  judicial  tribunal  to  determine  controversies 
between  States  to  which  New  York  was  a  party,  but  that  it  made  no 
difference  to  him  what  happened  if  the  question  was  between  Mis¬ 
souri  and  Kansas.  Every  citizen  knows  that  it  is  in  the  interest  of 
domestic  peace  that  we  should  maintain  a  tribunal  by  which  contro¬ 
versies  arising  between  any  two  States  can  be  determined.  It  is 
equally  essential  to  world  peace  that  controversies  not  our  own 
should  be  peacefully  and  impartially  determined  wherever  that  is 
possible.  As  President  McKinley  said,  “  It  has  been  recognized  as 
the  leading  feature  of  our  foreign  policy  throughout  our  entire 
national  history  ”  that  there  should  be  “  the  adjustment  of  difficulties 
by  judicial  methods  rather  than  by  force  of  arms.” 

How  are  controversies  between  nations  to  be  determined?  If  the 
nations  are  able  to  agree,  the  question  does  not  arise.  But  what 
shall  be  done  if  they  can  not  agree?  Is  their  controversy  to  remain 
a  festering  sore?  Ultimately,  the  alternative  to  peaceful  settlement 
is  the  arbitrament  of  force.  The  only  way  to  prevent  war  is  to  dis¬ 
pose  of  the  causes  of  war  and  the  desire  for  peace  must  be  supported 
by  the  institutions  of  peace. 

Because  a  court  may  not  be  able  to  deal  with  every  sort  of  con¬ 
troversy  but  only  with  •  controversies  that  are  appropriate  for  a 
court  to  decide  is  no  reason  for  dispensing  with  it.  There  is  no 


immediate  access  to  the  millennium  and  a  demand  for  the  millennium 
will  not  prevent  war.  If  the  plain  path  of  progress  in  dealing  with 
those  controversies  which  all  countries  recognize  to  be  susceptible 
of  settlement  through  judicial  tribunals  is  not  to  be  followed,  then 
no  progress  is  possible. 

Second.  Why  should  there  be  a  permanent  court  instead  of  tem¬ 
porary  arbitral  tribunals? 

The  principle  of  judicial  settlement  of  international  disputes  has 
been  applied  from  early  times  through  arbitrators.  It  is  a  method 
of  great  value  and  I  have  no  desire  to  underestimate  it.  We  have 
been  parties  to  more  than  70  arbitrations  and  we  have  concluded 
a  score  of  general  arbitration  conventions.  Throughout  its  history 
the  United  States  has  consistently  supported  this  sort  of  judicial 
process,  but  wTe  have  long  recognized  that  it  leaves  much  to  be 
desired. 

Arbitrators  are  selected  to  determine  a  particular  controversy,  and 
after  the  controversy  has  arisen.  When  the  decision  has  been  made 
the  arbitral  tribunal  ceases  to  exist.  There  is  unnecessary  expense 
in  the  creation  of  a  separate  tribunal  for  every  case  and  there  is  a 
regrettable  loss  in  the  experience  of  judges  because  of  the  lack  of 
continuity  in  service.  For  the  same  reason,  the  development  of  the 
law  suffers,  as,  instead  of  a  series  of  decisions  with  appropriate  rela¬ 
tion  to  each  other  by  a  permanent  bench  of  judges,  thus  gradually 
establishing  a  body  of  law,  there  are  sporadic  utterances  by  tem¬ 
porary  bodies  disconnected  with  each  other,  acting  under  different 
conditions,  and  having  a  widely  different  capacity. 

There  is  a  still  more  serious  defect  in  this  process.  The  arbitral 
tribunal  is  composed  of  those  specially  selected  by  the  parties  to 
the  dispute.  In  legal  matters  of  minor  consequence,  where  national 
interest  is  relatively  small,  judicial  standards  are  more  readily 
maintained.  But  where  the  controversy  is  a  serious  one  and  success 
is  highly  important,  the  constitution  of  a  tribunal  after  the  con¬ 
troversy  has  arisen  is  not  favorable  to  the  selection  of  those  who 
will  act  solely  as  impartial  judges.  And  those  members  of  the 
tribunal  who  are  the  separate  choice  of  each  party  tend  to  become 
advocates  rather  than  judges;  if  this  is  not  always  the  case  in  fact, 
it  is  generally  so  in  public  estimation. 

There  need  be  no  illusion  as  to  this  matter.  The  question  finally 
comes  to  the  selection  of  the  umpire,  or  third  or  fifth  arbitrator,  as 
the  case  may  be,  who  is  likely  to  have  the  deciding  vote.  The  smaller 
Powers  have  the  less  difficulty  in  making  such  a  choice.  They  have 
a  range  of  selection  that  is  generally  satisfactory  from  the  stand¬ 
point  of  national  interest  and  they  often  are  able  to  agree  upon  a 
tribunal  composed  of  a  single  arbitrator.  When  there  is  a  serious 
controversy  between  great  Powers,  however,  the  choice  of  an  umpire 


4 


or  third  arbitrator  is  far  from  easy.  National  interests  are  far- 
reaching,  and  a  selection  satisfactory  to  one  Power  is  for  the  same 
reason  the  subject  of  objection  by  the  other.  The  difficulty  has  been 
vastly  increased  by  the  feelings  engendered  and  the  alignment  of 
sympathies  in  the  Great  War.  It  has  become  the  practice  to  pro¬ 
vide  that,  in  case  of  a  failure  of  the  parties,  or  of  the  arbitrators 
respectively  selected  by  them,  to  agree  upon  an  umpire  or  third  arbi¬ 
trator,  he  shall  be  selected  by  some  designated  Power  or  Powers. 
This  is  because  some  means  of  choice  must  be  provided  if  the  parties 
can  not  agree,  but  this  course  places  with  the  designated  Power  or 
Powers  the  virtual  control  of  the  final  constitution  of  the  tribunal. 
The  alternative  is  to  have  the  selection  determined  by  lot,  and  cer¬ 
tainly  this  is  not  a  satisfactory  method. 

Even  where  the  parties  are  able  to  agree  upon  the  arbitrators, 
there  still  remains  the  danger  that  considerations  of  political  ex¬ 
pediency  will  usurp  the  place  of  judicial  standards.  I  would  not 
disparage  the  motives  of  arbitrators  or  the  importance  of  their  serv¬ 
ice,  but  as  Mr.  Root  has  well  said,  they  too  often  “  consider  them¬ 
selves  as  belonging  to  diplomacy  rather  than  to  jurisprudence;  they 
measure  their  responsibility  and  their  duty  by  the  traditions,  the 
sentiments,  and  the  sense  of  honorable  obligation  which  has  grown 
up  in  centuries  of  diplomatic  intercourse,  rather  than  by  the  tradi¬ 
tions,  the  sentiments,  and  the  sense  of  honorable  obligation  which 
characterizes  the  judicial  department  of  civilized  nations.’'  The 
process  tends  to  the  intrusion  of  political  interest  and  to  a  solution 
by  compromise  instead  of  a  proper  judicial  determination.  Ques¬ 
tions  of  right  come  to  be  determined  as  questions  of  policy. 

The  problem  in  the  improvement  of  the  judicial  process  in  inter¬ 
national  relations  is  to  secure  immunity,  so  far  as  is  humanly  pos¬ 
sible,  from  considerations  of  political  interest  and  policy  and  to  have 
the  rights  and  obligations  of  nations  determined  upon  their  merits. 
The  United  States  has  taken  the  lead  in  the  endeavor  to  secure  this 
result  by  the  most  appropriate  method,  that  is,  by  the  establishment 
of  a  permanent  international  court. 

Secretary  Hay  instructed  the  American  delegates  to  the  First 
Hague  Conference  in  1899  to  present  a  plan  for  an  international 
tribunal  of  a  permanent  character.  While  this  project  was  not 
adopted,  the  conference  did  make  a  decided  improvement  in  existing 
practice  by  providing  a  code  of  arbitral  procedure  and  an  eligible 
list  of  arbitrators  from  which  tribunals  might  be  constituted  for 
the  determination  of  such  controversies  as  the  parties  concerned 
might  agree  to  submit  to  them.  This  was  called  a  Permanent  Court 
of  Arbitration  but  it  was  not  in  fact  a  permanent  court;  it  was  a 
panel  of  arbiters.  This  Government  still  cherished  its  ideal  and 
hence,  at  the  Second  Hague  Conference,  our  delegates  were  instructed 


by  Secretary  Root  to  bring  about  “  a  development  of  the  Hague 
Tribunal  into  a  permanent  tribunal  composed  of  judges  who  are 
judicial  officers  and  nothing  else,  who  are  paid  adequate  salaries,  who 
have  no  other  occupation,  and  who  will  devote  their  entire  time  to 
the  trial  and  decision  of  international  causes  by  judicial  methods 
and  under  a  sense  of  judicial  responsibility.” 

Mr.  Choate,  as  the  first  delegate  of  the  United  States,  in  presenting 
to  the  conference  the  American  plan  for  a  permanent  court  quoted 
the  words  of  President  Roosevelt  that  he  hoped  “  to  see  the  Hague 
court  greatly  increased  in  power  and  permanency,  and  the  judges, 
in  particular,  made  permanent  and  given  adequate  salaries  so  as  to 
make  it  increasingly  probable  that  in  each  case  that  may  come  before 
them  they  will  decide  between  the  nations,  great  or  small,  exactly  as 
a  judge  within  our  own  limits  decides  between  the  individuals,  great 
or  small,  who  come  before  him.” 

Mr.  Choate  observed  that  the  work  of  the  First  Conference,  noble 
and  far-reaching  as  it  was,  had  not  proved  entirely  adequate  to  meet 
the  progressive  demands  of  the  nations,  and  to  draw  to  the  Hague 
Tribunal  for  decision  any  great  part  of  the  arbitrations  that  had 
been  agreed  upon;  and  that  in  the  eight  years  of  its  existence  only 
four  cases  had  been  submitted  to  it,  and  of  the  60  judges,  more  or 
less,  who  were  named  as  members  of  the  court  at  least  two-thirds 
had  not  as  yet  been  called  upon  for  any  service.  He  found  the  rea¬ 
sons  to  lie  in  undue  expense ;  in  the  fact  that  there  was  “  nothing 
permanent  or  continuous  or  connected  in  the  sessions  of  the  court;” 
that  it  had  “  thus  far  been  a  court  only  in  name — a  framework  for 
the  selection  of  referees  for  each  particular  case,  never  consisting  of 
the  same  judges.”  “  Let  us  then,”  said  he,  “  seek  to  develop  out  of 
it  a  permanent  court,  which  shall  hold  regular  and  continuous  ses¬ 
sions,  which  shall  consist  of  the  same  judges,  which  shall  pay  due 
heed  to  its  own  decisions,  which  shall  speak  with  the  authority  of 
the  united  voice  of  the  nations,  and  gradually  build  up  a  system 
of  international  law,  definite  and  precise,  which  shall  command 
the  approval  and  regulate  the  conduct  of  the  nations.” 

Mr.  Choate  added  that  the  plan  proposed  by  the  American  dele¬ 
gates  did  not  “in  the  least  depart  from  the  voluntary  character  of 
the  court  already  established.  No  nation  can  be  compelled  or  con¬ 
strained  to  come  before  it,  but  it  will  be  open  for  all  who  desire  to 
settle  their  differences  by  peaceful  methods  and  to  avoid  the  terrible 
consequences  and  chances  of  war.”  With  solemn  emphasis,  dis¬ 
claiming  any  pride  of  opinion  as  to  any  point  or  feature  of  the 
American  plan,  he  warned  the  great  gathering  of  the  representa¬ 
tives  of  all  the  nations  that  it  “  would  be  false  to  its  trust  and  wmuld 
deserve  that  the  seal  of  condemnation  should  be  set  upon  its  work  ” 


6 


if  it  did  not  “strain  every  nerve  to  bring  about  the  establishment  of 
some  such  great  and  permanent  tribunal.” 

While  the  Second  Hague  Conference  discussed  a  project  and  recom¬ 
mended  a  draft  convention  for  the  establishment  of  a  Permanent 
Court,  it  was  unable  to  find  a  satisfactory  method  of  selecting  the 
judges,  and  for  this  reason  the  project  failed.  Still  the  American 
delegates  reported  to  their  Government  that  in  the  proposed  project 
the  foundations  of  a  permanent  court  had  been  broadly  and  firmly 
laid,  and  added — “a  little  time,  a  little  patience,  and  the  great  work 
is  accomplished.”  Echoing  the  same  sentiment,  President  Roosevelt 
said  in  his  next  message  to  the  Congress :  “  Substantial  progress  was 
also  made  toward  the  creation  of  a  permanent  judicial  tribunal  for 
the  determination  of  international  causes.”  He  regarded  the  un¬ 
settled  question  as  to  the  method  of  selecting  judges  as  “  plainly  one 
which  time  and  good  temper  will  solve.” 

The  establishment  of  a  permanent  court  of  international  justice 
continued  to  be  a  cardinal  feature  of  American  policy. 

Third.  Is  the  present  Permanent  Court  of  International  Justice, 
to  which  the  President’s  recommendation  refers,  published  on  a 
sound  basis  ? 

This  question  invites  consideration  of  its  orgaol^^pn;  of -the 
extent  to  which  the  court  has  the  support  of  the  nations ;  of  the 
jurisdiction  and  standards  of  the  court;  and  of  the  qualifications, 
tenure,  method  of  selection,  and  independence  of  the  judges  com¬ 
posing  it. 

The  Permanent  Court  of  International  Justice  has  been  established 
under  what  is  called  a  statute,  or  constitution,  which  defines  its  or¬ 
ganization,  jurisdiction,  and  procedure.  In  the  preparation  of  this 
statute  the  council  of  the  league  called  to  its  aid  an  international 
committee  of  the  most  distinguished  jurists,  among  whom  was  Mr. 
Root.  This  Advisory  Committee  of  Jurists  formulated  a  plan  for  a 
permanent  court.  The  plan  was  considered  and  amended  in  the 
council  and  assembly  of  the  league,  but  its  main  structure  was  re¬ 
tained.  While  the  amended  plan  was  adopted  by  the  assembly  of 
the  league,  it  could  not  be  put  into  effect  by  action  of  the  league. 
In  view  of  the  scope  of  the  plan,  it  was  necessary  to  have  a  special 
international  agreement  on  the  part  of  the  States  which  were  willing 
to  accept  it.  Accordingly  a  special  protocol  or  agreement,  with  the 
statute  of  the  court  annexed,  was  drawn  up  and  sent  to  the  nations 
for  approval.  I  understand  that  about  forty-six  States  have  signed 
this  special  agreement,  and  of  these  about  thirty-four  States  have 
already  ratified  it. 

The  permanent  court  is  thus  an  establishment  separate  from  the 
league,  having  a  distinct  legal  status  created  by  an  independent  or¬ 
ganic  act. 


7 


The  jurisdiction  of  the  court  comprises  all  cases  which  the  parties 
refer  to  it  and  all  matters  specially  provided  for  in  treaties  and 
conventions  in  force. 

Careful  provision  has  been  made  to  secure  the  independence  of 
the  court  and  to  safeguard  the  appropriate  discharge  of  its  functions 
as  a  judicial  body  in  accordance  with  accepted  judicial  standards. 
The  statute  of  the  court  provides  that  it  shall  be  composed  “  of  a 
body  of  independent  judges,  elected  regardless  of  their  nationality 
from  amongst  persons  of  high  moral  character,  who  possess  the  quali¬ 
fications  required  in  their  respective  countries  for  appointment  to  the 
highest  judicial  offices,  or  are  jurisconsults  of  recognized  competence 
in  international  law/’  The  court  consists  of  15  members — 11 
ordinary  judges  and  4  deputy  judges.  The  11  judges  constitute 
the  full  court,  but  if  they  can  not  all  be  present,  the  deputy 
judges  may  be  called  on.  Nine  constitute  a  quorum.  The  court  is 
thus  large  enough  to  be  appropriately  representative  and  at  the  same 
time  is  not  so  large  that  it  can  not  effectively  transact  its  business. 

The  judges  are  elected  for  nine  years  and  are  eligible  for  reelec¬ 
tion.  Every  judge  before  taking  up  his  duties  must  make  a  solemn 
declaration  in  open  court  that  he  will  exercise  his  powers  impartially 
and  conscientiously.  The  ordinary  members  of  the  court  may  not 
exercise  any  political  or  administrative  function.  This  provision 
applies  to  the  deputy  judges  during  the  time  that  they  are  perform¬ 
ing  their  duties  on  the  court. 

No  judge  can  be  removed  by  the  League  of  Nations.  A  judge 
can  not  be  dismissed  unless,  in  the  unanimous  opinion  of  the  other 
members  of  the  court,  he  has  ceased  to  fulfill  the  required  conditions. 
This  gives  the  judges  absolute  security  in  the  impartial  performance 
of  their  duties. 

The  statute  provides  that  in  deciding  cases  the  court  shall  apply 
international  conventions  establishing  rules  expressly  recognized  by 
the  contesting  States;  international  custom,  as  evidence  of  a  general 
practice  accepted  as  law;  the  general  principles  of  law  recognized 
by  civilized  nations;  and  the  judicial  decisions  and  the  teachings 
of  the  most  highly  qualified  publicists  of  the  various  nations,  as 
subsidiary  means  for  the  determination  of  rules  of  law.  All  ques¬ 
tions  are  decided  by  a  majority  of  the  judges  present,  and  in  the 
event  of  an  equality  of  votes,  the  President  or  his  deputy,  who  are 
elected  by  the  court  itself,  shall  have  a  casting  vote. 

The  judgment  of  the  court  is  to  be  final  and  without  appeal.  It 
is  expressly  provided,  however,  that  the  decision  of  the  court  shall 
have  no  binding  force  except  between  the  parties  and  in  respect  of 
the  particular  case  decided. 

As  already  observed,  the  Hague  project  of  1907  for  the  establish¬ 
ment  of  a  permanent  court  failed  because  it  was  found  to  be  im- 
44777—23 - 2 


8 


possible  to  agree  upon  the  method  of  selecting  the  .judges.  Mani¬ 
festly,  if  the  nations  are  to  participate  in  maintaining  an  inter¬ 
national  court  they  must  have  suitable  opportunity  to  participate  in 
the  election  of  those  who  compose  it.  Still,  to  have  every  nation  rep¬ 
resented  upon  such  a  court,  or  to  have  a  selection  of  a  permanent 
body  of  judges  according  to  nationality,  would  be  wholly  impracti¬ 
cable,  and  insistence  upon  such  a  course  would  make  impossible  the 
establishment  of  a  permanent  court.  The  fundamental  postulate  of 
international  law  is  the  equality  of  States,  but  if  this  principle  alone 
is  observed  and  all  States  should  join  in  the  election  of  judges  pre¬ 
cisely  upon  the  same  footing,  the  small  powers  would  have  a  great 
majority  and  would  control  the  election.  Even  though  the  juris¬ 
diction  of  the  court  was  not  compulsory,  a  court  thus  constituted 
would  not  be  likely  to  enjoy  the  confidence  of  the  great  powers. 
At  least,  the  fear  of  such  an  arrangement  has  been  until  now  an 
insuperable  obstacle  in  establishing  an  international  court. 

This  difficulty  has  been  surmounted  by  providing  that  the  two 
groups  of  Powers  in  the  council  and  assembly  of  the  league  shall 
act  concurrently  in  the  election  of  judges.  The  council  is  a  small 
body,  of  ten  members,  and  the  great  Powers — Great  Britain,  France, 
Italy,  and  Japan — are  permanent  members,  the  others  being  non¬ 
permanent  members.  The  assembly,  on  the  other  hand,  embraces 
all  the  members  of  the  league,  fifty-two  in  number.  The  statute 
of  the  court  provides  that  in  electing  the  judges  each  of  these  bodies 
shall  proceed  independently,  and  the  successful  candidate  must  have 
a  majority  of  the  votes  in  each.  The  result  is  that  the  great  Powers 
are  able  to  vote  in  a  small  group,  of  which  they  are  permanent 
members,  while  all  the  smaller  Powers  can  vote  in  the  other  group. 
In  this  way  the  great  Powers  and  the  smaller  Powers  have  a  check 
upon  each  other,  and  it  is  as  certain  as  anything  human  can  be  that 
their  concurrent  action  will  result  in  the  election  of  impartial  judges. 

It  should  be  noted  that  the  council  and  assembly,  in  electing 
judges,  do  not  act  under  the  covenant  of  the  League  of  Nations. 
That  covenant,  which  determines  the  rights  and  obligations  of 
members  of  the  league,  invests  them  with  no  authority  whatever 
for  such  action.  The  election  is  held  under  the  provisions  of  the 
statute  of  the  court  which  rests,  as  I  have  said,  upon  a  special  inter¬ 
national  agreement.  For  this  purpose,  the  council  and  assembly 
are  electoral  bodies  which  are  utilized  because  they  are  groups  of 
States  and  through  provision  for  their  concurrent  action  the  diffi¬ 
culty  of  finding  a  satisfactory  basis  of  selection  has  been  overcome. 

This  suggestion  was  brought  forward  by  Mr.  Boot  in  the  Ad¬ 
visory  Committee  of  Jurists.  Analogy  was  found  in  the  plan  which 
made  possible  our  organic  Union,  by  providing  for  the  representa- 


9 


tion  of  sovereign  States  in  the  Senate  and  of  the  people  in  the  House 
of  Kepresentatives  and  requiring  in  the  enactment  of  laws  the  ac¬ 
tion  of  both  groups.  The  method  of  electing  judges  for  the  per¬ 
manent  court  is  thus  a  practical  solution,  and  I  think  it  may  be 
said  that  without  a  solution  of  this  sort  which  will  enable  great 
Powers  to  have  a  check  upon  the  smaller  Powers,  and  the  latter  to 
have  a  check  upon  the  former,  a  permanent  court  can  not  be  estab¬ 
lished.  We  are  generally  in  danger,  in  all  efforts  at  progress,  of 
being  balked  by  an  impractical  idealism ;  in  this  case  it  is  fortunate 
that  a  wTise  practicality  has  enabled  the  nations  to  attain  the  ideal 
of  an  impartial  court. 

It  should  be  added  that  candidates  for  election  are  nominated  by 
national  groups  of  arbitrators  who  are  on  the  panel  established  by 
The  Hague  Convention  and  the  election  is  made  from  the  candidates 
presented  by  these  groups,  except  that,  in  case  of  inability  otherwise 
to  agree,  a  joint  conference  of  representatives  of  the  council  and 
assembly  may  unanimously  present  another  name  to  each  body. 
These  national  groups  who  thus  have  the  privilege  of  nominating 
candidates  for  the  Permanent  Court  of  International  Justice  are 
selected  by  the  Governments,  respectively,  under  the  Hague  Conven¬ 
tion  as  men  of  known  competency  in  questions  of  international  law 
and  of  the  highest  moral  reputation.  Before  making  these  nomina¬ 
tions,  each  national  group  is  recommended  by  the  statute  of  the  court 
to  consult  its  highest  court  of  justice,  its  legal  faculties  and  schools 
of  law,  and  its  national  academies  and  national  sections  of  interna¬ 
tional  academies  devoted  to  the  study  of  law.  Thus  the  participat¬ 
ing  nations  have  the  opportunity  to  submit  the  names  of  their  leading 
jurists. 

The  plan  gives  every  assurance  against  a  successful  attempt  by 
any  bloc  to  manipulate  or  control  the  elections.  Any  such  attempt 
in  the  assembly  would  meet  with  the  greatest  difficulty  in  view  of  its 
52  members  and  their  diverse  interests,  while  any  effort  on  the  part 
of  the  council  to  elect  a  judge  partial  to  particular  interests  would  be 
wrecked  in  the  assembly.  It  is  wholly  improbable  that  acting  in  this 
way  the  participating  nations  would  be  able  to  agree  upon  judges 
unless  they  were  men  of  acknowledged  merit  with  a  public  reputation 
affording  the  best  possible  guaranty  of  competence  and  impartiality. 

The  judges  chosen  through  the  concurrent  action  of  these  groups 
will  be  in  all  probability,  as  in  the  case  of  those  already  elected,  men 
of  mature  years,  who  have  won  high  distinction.  They  are  elected 
for  nine  years  and  will  most  probably  be  reelected  if  they  give  faith¬ 
ful  service.  This  means  that  men  of  exceptional  experience  and 
recognized  fitness  for  these  most  important  posts  are  chosen  at  a 
time  of  life,  and  for  a  term  of  service,  which  leaves  them  no  motive 
but  to  devote  the  rest  of  their  career  to  making  efficient  the  adminis- 


10 


tration  of  international  justice  to  the  full  extent  of  their  ability. 
If  there  is  any  practicable  plan  better  safeguarding  the  essentials 
of  an  international  court  it  has  never  been  suggested. 

In  considering  the  question  of  the  relation  of  the  court  to  the 
league,  it  must  be  remembered  that  if  there  were  no  league,  you 
would  still  have  to  deal  with  the  States  composing  the  league.  If 
you  are  to  have  a  permanent  court  these  States  should  participate 
in  establishing  it  and  maintaining  it  and  in  electing  its  judges.  The 
question  would  still  remain — whether  all  these  States  in  choosing 
judges  should  act  in  one  body  or  group,  whatever  you  might  call  it, 
or  not.  If  it  were  insisted  that  they  should  act  in  one  body  upon 
precisely  the  same  footing,  we  should  return  to  the  old  difficulty  and 
get  no  court  at  all.  If,  on  the  other  hand,  you  say  that  the  par¬ 
ticipating  States  should  act  in  two  bodies  or  groups,  so  that  the 
great  powers  may  have  a  check  upon  smaller  powers  and  the  latter 
upon  the  former,  then  the  question  is,  What  should  the  second  body 
or  group  be?  Whatever  you  call  it,  it  would  be  a  body  or  group 
in  which  the  great  powers  would  presumably  be  permanent  members. 

The  fundamental  question  is  whether  the  League  of  Nations  con¬ 
trols  the  court.  To  this  there  is  a  ready  answer.  The  league  does 
not  control  the  court;  that  is  an  independent  judicial  body.  The 
league  is  composed  of  States;  they,  of  course,  continue  to  exist  as 
States.  When  the  league  acts,  it  acts  under  the  covenant  which 
creates  the  rights  and  obligations  pertaining  to  the  league.  But 
when  these  52  members  act  in  separate  groups  to  elect  judges,  they 
are,  as  I  have  said,  not  acting  under  the  covenant,  but  are  following 
a  course  of  procedure  denned  by  a  special  international  agreement  in 
order  to  secure  the  independent  and  impartial  judicial  body  for 
which  the  world  has  been  waiting. 

There  are  certain  other  provisions  of  the  statute  of  the  court  which 
have  been  adopted  to  meet  obvious  practical  exigencies.  Only  one 
national  of  a  participant  in  the  election  can  be  chosen  as  a  judge. 
Judges  of  the  nationality  of  each  contesting  party  retain  their  right 
to  sit  in  the  case  before  the  court.  If  the  court  includes  upon  the 
bench  a  judge  of  the  nationality  of  one  of  the  parties  only,  the  other 
party  may  select  from  among  the  deputy  judges  a  judge  of  its  na¬ 
tionality  if  there  be  one,  or,  if  not,  the  party  may  choose  a  judge. 
If  the  court  includes  upon  the  bench  no  judge  of  the  nationality  of 
the  contesting  parties,  each  may  choose  a  judge.  If  there  are  several 
parties  in  the  same  interest  they  are  to  be  reckoned,  for  the  purpose 
of  these  provisions,  as  one  party  only. 

The  court  recognizes  that  it  may  be  called  upon  by  the  council  or 
assembly  of  the  league  for  advisory  opinions.  This  is  a  practice 
similar  to  that  which  has  obtained  in  most  of  the  States  of  New 
England  from  colonial  days.  It  now  obtains  in  Massachusetts, 


11 


New  Hampshire,  Maine,  Rhode  Island,  Florida,  Colorado,  and 
South  Dakota.  The  Permanent  Court  of  International  Justice 
has  adopted  rules  upon  this  subject  so  as  to  assimilate  the 
process  so  far  as  possible  to  a  judicial  proceeding  and  especially  so 
as  to  exclude  any  supposition  that  advisory  opinions  may  be  rendered 
in  a  diplomatic  sense  and  without  publicity.  (See  article  by  Judge 
John  Bassett  Moore  on  the  Organization  of  the  Permanent  Court  of 
International  Justice,  Columbia  Law  Review,  Vol.  XXII,  No.  6, 
June,  1922,  pages  11  and  12.) 

The  conclusion  is  that  while  the  United  States  should  have  the 
right  to  participate  in  the  election  of  judges  if  it  is  to  support  the 
Permanent  Court,  that  court  is  established  on  a  sound  basis.  It  is 
already  functioning.  The  judges  have  been  elected — a  most  dis¬ 
tinguished  American  jurist  being  one  of  them — and  they  are  as  rep¬ 
resentative  a  body  of  independent  and  qualified  jurists  as  could  be 
chosen. 

Fourth .  I  come  then  to  the  final  question:  Is  there  any  good 
reason  why  the  United  States  should  not  support  the  Permanent 
Court  ?  This  support  has  been  proposed  by  the  President  upon  four 
explicit  conditions.  These  conditions  are : 

I.  That  such  adhesion  .shall  not  be  taken  to  involve  any 
legal  relation  on  the  part  of  the  United  States  to  the  League 
of  Nations  or  the  assumption  of  any  obligations  by  the 
United  States  under  the  covenant  of  the  League  of  Nations 
constituting  Part  I  of  the  treaty  of  Versailles. 

II.  That  the  United  States  shall  be  permitted  to  partici¬ 
pate  through  representatives  designated  for  the  purpose  and 
upon  an  equality  with  the  other  States’  members,  respectively, 
of  the  council  and  assembly  of  the  League  of  Nations  in  any 
and  all  proceedings  of  either  the  council  or  the  assembly  for 
the  election  of  judges  or  deputy  judges  of  the  Permanent 
Court  of  International  Justice,  or  for  the  filling  of  vacancies. 

III.  That  the  United  States  will  pay  a  fair  share  of  the 
expenses  of  the  court  as  determined  and  appropriated  from 
time  to  time  by  the  Congress  of  the  United  States. 

IV.  That  the  statute  for  the  Permanent  Court  of  Inter¬ 
national  Justice  adjoined  to  the  protocol  shall  not  be  amended 
without  the  consent  of  the  United  States. 

The  acceptance  of  these  conditions  will  establish  that  the  support 
of  the  court  will  not  involve  entry  by  the  United  States  into  the 
League  of  Nations;  the  participation  of  the  United  States  in  the 
election  of  judges;  the  bearing  by  the  United  States  of  its  proper 
share  of  the  expenses  of  the  court;  and,  finally,  a  safeguard  against 
any  change  in  the  statute  of  the  court  without  the  assent  of  the 
United  States. 

What,  then,  are  the  objections  to  support  of  the  court  upon  this 
basis? 


12 


(1)  It  is  objected  that  it  is  not  a  world  court.  But  in  what  sense  is 
it  not  a  world  court?  Is  reference  made  to  the  number  of  nations 
which  support  it?  The  answer  is,  as  I  have  already  said,  that 
about  46  nations  have  already  signed  the  protocol,  and  if  the  United 
States  adheres,  there  is  every  reason  to  suppose  that  participation 
by  the  other  nations  will  be  brought  about.  This  should  be  our 
aim.  It  is  not  too  much  to  say  that  there  will  be  no  world  court 
if  this  court  can  not  be  made  one,  and  whether  or  not  it  is  to  be  in 
the  fullest  sense  a  world  court  depends  upon  our  own  action. 

Suppose  we  should  now  undertake  to  establish  another  world 
court?  What  should  we  do?  We  could  not  establish  it  by  our¬ 
selves;  we  should  have  to  prepare  a  plan  and  submit  it  to  the  other 
nations.  We  should  need  the  approval  of  the  nations  who  have 
already  approved  the  present  plan. 

What  differences  should  we  propose,  so  far  as  the  structure  of  the 
court  is  concerned?  With  respect  to  the  choice  of  judges,  would  we 
endeavor  to  have  a  practicable  plan  or  one  that  had  been  demon¬ 
strated  to  be  impracticable?  Should  we  insist  that  all  nations  be 
represented  on  the  court  by  their  nationals,  or  that  all  nations,  great 
and  small,  should  act  together  in  the  choice  of  judges  upon  pre¬ 
cisely  the  same  footing  and  without  any  division  into  groups  which 
could  form  a  check  upon  each  other?  If  so,  we  should  have  a  plan 
which  would  most  probably  fail  of  acceptance,  and  at  the  same  time 
would  not  safeguard  the  interests  of  the  United  States  nearly  as  well 
as  the  existing  plan.  Should  we  recommend  concurrent  action  by 
groups  of  nations,  in  order  to  have  a  practical  arrangement  for 
selecting  judges?  If  so,  what  groups  should  we  propose,  and  how 
would  they  differ  essentially  from  the  present  electoral  bodies?  The 
more  the  matter  is  examined,  the  more  clearly  I  think  it  will  appear 
that  the  suggested  changes  would  be  purely  formal,  and  not  at  all 
vital  to  our  interests,  or  of  a  character  which  would  disclose  any  just 
reason  for  refusing  support  to  the  existing  court  and  for  entering 
upon  the  difficult,  if  not  vain,  endeavor  of  establishing  another 
judicial  institution. 

(2)  Another  objection  is  that  the  court  has  been  established 
through  the  action  of  the  League  of  Nations.  This  is  not  an  entirely 
accurate  statement,  for  the  action  of  the  league  could  not  have 
established  the  court.  It  was  necessary  to  have  a  special  agreement 
signed  or  adhered  to  by  the  nations  which  support  the  court,  and 
the  court  rests  upon  that  agreement.  The  substantial  point,  however, 
is  not  the  source  of  the  plan  but  its  character.  Any  nation,  or  any 
group  of  nations,  might  have  suggested  the  plan  and  it  might  be 
none  the  worse  or  none  the  better  for  that.  The  question  still  re¬ 
mains — What  is  the  court  that  has  thus  been  established,  and  is  it  in 
its  essential  attributes  worthy  of  support  ? 


1 


•  > 
t> 


This  question  I  have  examined,  and  I  think  it  is  demonstrable 
that  the  court  is  an  independent  judicial  body  with  appropriate 
judicial  functions  and  abundant  safeguards  for  their  proper  dis¬ 
charge.  It  is  not  a  servant  of  the  league;  and  its  decisions  are  not 
supervised  or  controlled  by  the  league. 

It  is  said  that  the  salaries  and  expenses,  or  budget  of  the  court, 
are  fixed  by  the  assembly  of  the  league  upon  the  proposal  of  the 
council.  But  the  action  of  the  assembly  is  the  action  of  the  52  mem¬ 
bers  composing  the  assembly  and  the  recommendation  of  the  coun¬ 
cil  is  the  recommendation  of  the  States  composing  the  council, 
in  each  case  the  action  being  taken  under  the  statute  of  the  court. 
If  the  nations  are  to  support  a  court,  they  must  of  course  have  some 
practical  means  of  dealing  with  the  budget.  Under  the  present  plan, 
by  which  both  these  groups  act,  there  is  abundant  protection  against 
extravagance.  We  properly  reserve  the  right  of  Congress  to  deter¬ 
mine  by  its  appropriation  the  amount  wdiich  the  United  States  shall 
pay  as  its  share.  I  find  nothing  which  can  be  regarded  as  inimical 
to  the  interests  of  the  United  States  in  the  provisions  as  to  procedure. 

(3)  But  it  is  said  that  support  of  the  court,  although  it  mani¬ 
festly  does  not  involve  entrance  into  the  league,  or  the  assumption 
of  any  obligation  under  the  covenant  of  the  league,  constitutes  an 
entanglement.  But  in  what  do  we  become  entangled?  Are  we  to 
abandon  the  effort  to  dispose  of  international  controversies  by  judi¬ 
cial  settlement,  which  has  been  a  feature  of  American  policy  since 
the  foundation  of  the  Government?  We  can  not  have  an  ordinary 
arbitration  unless  we  have  an  international  agreement  and  an  inter¬ 
national  tribunal  for  the  purpose  of  the  arbitration.  We  have  never 
considered  this  to  be  an  entanglement.  We  have  manifested  our 
desire  for  such  judicial  settlements  by  numerous  treaties  and  special 
conventions. 

Certainly  we  do  not  object  that  the  disputes  of  others  should  be 
settled  peacefully  by  similar  methods.  Then,  as  I  have  shown,  the 
establishment  of  a  permanent  court  has  been  an  American  policy 
because  we  have  desired  this  essential  improvement  in  judicial  proc¬ 
ess  in  international  relations.  Political  platforms  have  treated 
this  as  an  American  policy  and  not  as  a  forbidden  entanglement. 
If  you  are  to  treat  participation  in  a  permanent  court  of  international 
justice  as  an  entanglement  foreign  to  our  institutions,  you  must  re¬ 
write  American  history.  If  you  are  not,  then  the  question  is  as  to 
this  particular  permanent  court  and  we  return  to  the  consideration 
of  its  organization  and  functions,  and  these  justify  the  conclusion 
that  it  is  an  independent  judicial  body  of  the  highest  character  and 
deserves  our  confidence. 

(4)  Again  it  is  objected  that  a  world  court  should  have  compulsory 
jurisdiction  and  that  the  jurisdiction  of  the  Permanent  Court  of 


14 


International  Justice  is  not  compulsory.  It  may  be  noted  that  pro¬ 
vision  is  made  in  the  statute  of  the  court  for  the  acceptance  by  States, 
through  a  special  agreement,  of  compulsory  jurisdiction  of  legal 
disputes  as  defined  in  the  statute.  I  understand  that  of  the  46  States 
that  have  signed  the  protocol  about  15  have  ratified  this  optional 
clause  for  compulsory  jurisdiction,  but  among  the  majority  of  the 
States  which  have  not  assented  to  the  optional  clause  are  Great 
Britain,  France,  Italy,  and  Japan.  It  is  apparent  that  the  greater 
nations  are  not  yet  ready  to  accept  compulsory  jurisdiction  even  of 
the  limited  class  of  questions  above  described.  Certainly,  it  does  not 
appear  that  the  United  States  is  ready  to  accept  it. 

The  American  plan  for  a  permanent  court,  which  was  submitted  to 
the  Second  Hague  Conference,  was,  as  Mr.  Choate  pointed  out,  for  a 
jurisdiction  of  a  voluntary  character.  The  Senate  repeatedly,  from 
the  days  of  President  Cleveland,  has  refused  to  sanction  an  arbitra¬ 
tion  treaty  providing  for  compulsory  arbitration.  It  has  been  re¬ 
quired  that,  even  under  our  general  arbitration  treaties  relating  to 
legal  disputes,  there  should  be  a  limitation  relating  to  questions 
which  affect  the  vital  interests,  the  independence,  or  the  honor  of  the 
two  contracting  States,  and  the  Senate  has  insisted  that  a  special 
agreement  for  each  particular  arbitration  should  be  submitted  for 
its  assent. 

Shall  we  postpone  the  plan  for  a  world  court  because  we  can  not 
have  compulsory  jurisdiction?  Can  we  not  make  substantial  progress 
in  the  judicial  process  by  the  creating  of  a  tribunal  which  in  the 
highest  degree  will  command  confidence  and  to  which  the  nations 
may  present  their  cases  for  the  most  impartial  and  expert  considera¬ 
tion  that  is  obtainable?  Why  should  impossibilities  be  demanded 
if  we  are  really  interested  in  judicial  settlement?  It  is  said  that 
the  court  is  substantially  an  arbitral  tribunal  because  of  the  absence 
of  compulsory  jurisdiction.  But  this  is  not  an  effective  argument, 
for  even  if  the  court  could  be  so  described,  the  question  would  re¬ 
main  ;  why  should  we  not  have  the  great  advantage  of  this  improve¬ 
ment  in  the  judicial  mechanism?  This  brings  us  back  to  the  ques¬ 
tion  whether  or  not  we  desire  a  permanent  court  with  the  continuous 
service  of  judges  with  appropriate  judicial  standards  instead  of 
temporary  arbitral  tribunals — a  question  to  the  affirmative  answer  of 
which  we  have  long  been  committed. 

(5)  Further,  it  is  objected  that  no  provision  is  made  for  the  en¬ 
forcement  of  the  decisions  of  the  court.  There  are  those  who  desire 
to  see  an  international  armed  force  to  compel  the  carrying  out  of  de¬ 
cisions.  Those  who  make  this  demand  generally  assume  that  there 
will  be  substantial  unity  among  those  furnishing  the  armed  force  so 
that  it  can  be  used.  But  when  there  is  such  international  unity  the 
power  of  public  opinion  is  at  its  maximum  and  there  is  the  least 


15 


i  i 


need  for  force,  while  in  the  absence  of  such  unity  the  armed  force  is 
likely  to  remain  unused. 

The  truth  is  that  the  decisions  of  the  court  will  have  the  most  solemn 
sanction  that  it  is  practicable  to  obtain.  When  nations  agree  to  sub¬ 
mit  a  dispute  to  a  tribunal  and  to  abide  by  the  decision,  its  observance 
is  a  point  of  international  honor  of  the  highest  sort.  You  can 
really  have  no  better  sanction  than  this  and  the  obligation  is  one 
which  will  be  all  the  more  keenly  felt  when  the  decision  is  not  simply 
that  of  a  temporary  arbitral  tribunal  but  of  a  permanent  court 
supported  by  practically  all  the  nations  of  the  world.  If  you  desire 
to  improve  the  authority  of  judicial  determinations  of  international 
disputes,  you  can  best  effect  this  object  by  improving  the  reputation 
for  impartiality,  and  for  disinterested  judicial  consideration,  of 
the  tribunal  that  decides  them. 

(6)  An  objection  of  a  different  character  is  that  the  United  States 
should  unconditionally  support  the  court,  and  therefore,  apparently, 
that  the  suggested  conditions  should  be  withdrawn.  This  objection 
simply  means  that  the  United  States  should  enter  the  League  of 
Nations,  as  the  objection  assumes,  in  accordance  with  the  fact,  that 
the  proposed  support  of  the  court  does  not  involve  entry  into  the 
league.  But  why,  in  supporting  an  institution  which  embodies  a 
cherished  ideal  of  the  American  people,  should  we  revive  the  con¬ 
troversy  over  the  league?  Why  should  we  not  support  the  court  as 
a  judicial  body?  In  giving  this  support,  however,  it  is  important 
that  we  should  reserve  the  right  to  participate  in  the  election  of 
judges,  that  we  should  protect  ourselves  against  amendment  of  the 
statute  without  our  consent,  and  that  we  should  provide  for  the  de¬ 
termination  by  Congress  of  the  amount  to  be  paid  as  our  share  of 
the  expenses.  The  stipulated  conditions  are  appropriate  to  the 
purpose. 

(7)  Another  objection  is  that  the  British  Empire  has  six  votes 
in  the  assembly  of  the  league  in  the  election  of  judges,  because  the 
Dominions  and  other  constituent  parts  of  the  Empire  are  members 
of  the  assembly.  It  must  be  remembered,  however,  that  there  are 
52  votes  in  the  assembly.  The  admission  to  membership  of  these 
parts  of  the  British  Empire  has  been  a  recognition  of  the  aspiration 
of  the  peoples  composing  them,  and  this  has  not  been  found  an  in¬ 
superable  obstacle  to  the  support  of  the  court  by  other  Powers.  And 
it  would  be  difficult  to  find  a  sound  reason  for  objection  on  the  part 
of  the  United  States  to  this  increase  on  natural  grounds  in  the  voting 
strength  of  the  peoples  who  have  been  developed  under  the  influence 
of  Anglo-Saxon  jurisprudence. 

Moreover,  under  the  proposed  condition  the  United  States  will 
not  only  participate  in  the  election  by  the  assembly,  but  also  in  the 


16 


election  by  the  council,  and  in  the  council  the  British  Empire  has 
but  one  vote.  We  are  far  better  protected  by  this  arrangement  than 
by  one  which  would  have  all  States  vote  together  on  exactly  the  same 
footing  and  where  the  smallest  nation  would  cast  the  same  vote 
as  the  United  States.  The  arrangement  for  our  participation  in 
the  voting  for  the  judges  by  the  council  is  really  a  stronger  protec¬ 
tion  to  the  interests  of  the  United  States  than  has  hitherto  been 
suggested  in  any  plan  for  a  permanent  court.  The  question  should 
also  be  considered  in  the  light  of  the  nature  of  the  action  that  is 
involved.  It  is  practically  impossible,  under  the  scheme  that  has 
been  adopted,  for  the  British  Empire,  or  for  any  combination,  to 
secure  an  election  of  judges  in  aid  of  a  particular  political  interest. 
Such  an  effort  would  die  stillborn,  because  of  the  necessity  for  a 
concurrent  choice  by  both  groups  of  nations  in  the  manner  that  has 
been  devised. 

Finally,  it  is  hardly  necessary  to  say  that  I  am  in  entire  sympathy 
with  efforts  to  codify  international  law  and  to  provide  conventions 
for  its  improvement.  I  believe  in  conferences  for  that  purpose.  We 
have  already  made  some  progress  in  this  direction  through  the  recent 
Commission  of  Jurists  which  sat  at  The  Hague  to  suggest  modifica¬ 
tions  in  the  laws  of  war  which  are  made  necessary  by  new  agencies 
of  warfare — a  commission  established  under  a  resolution  adopted  at 
the  Conference  on  Limitation  of  Armament.  However,  the  process 
of  codifying,  clarifying,  and  improving  international  law  is  neces¬ 
sarily  a  slow  one,  and  if  we  wait  for  a  satisfactory  body  of  law  before 
we  have  a  permanent  court  a  generation  will  pass  before  it  is  estab¬ 
lished.  Meanwhile  let  us  supply  appropriate  means  for  the  applica¬ 
tion  of  the  law  we  have.  The  two  projects  are  not  inconsistent;  the 
one  can  exist  along  with  the  other. 

But  we  have  an  acute  world  need.  We  shall  make  no  progress 
toward  the  prevention  of  war  if  we  adopt  a  perfectionist  policy. 
Whatever  else  we  should  have,  we  need  at  once  a  permanent  court 
of  international  justice.  No  plan  to  promote  peace  can  dispense  with 
it.  Why  should  we  wait  for  the  solution  of  difficult  problems  of 
policy  and  the  settlement  of  the  most  acute  international  controver¬ 
sies  of  a  political  nature  before  we  meet  the  obvious  necessity  of  pro¬ 
viding  for  the  appropriate  disposition  of  those  controversies  with 
which  an  international  court  is  competent  to  deal? 

Any  successful  effort  to  settle  controversies  aids  in  the  cultiva¬ 
tion  of  good  will  and  the  desire  for  the  adjustments  of  amity.  The 
support  of  a  permanent  court  as  an  institution  of  peace  will  be  a 
powerful  influence  in  the  development  of  the  will  to  peace.  I  hope 
that  the  United  States,  in  deference  to  its  own  interests  and  in 
justice  to  its  ideals,  will  do  its  part. 

o 


UNIVERSITY 


ILLINOIS. 


•HRn  am 


3  0112  059093044 


